The Evaluation of the 2021 ICC Decision on Territorial Jurisdiction in Palestine

A. Introduction

Since the establishment of the Israeli occupation state, it has been widely documented that Israel systematically violates human rights and breaches international law in the Palestinian territories through its occupation. Palestine has repeatedly presented evidence to the international community regarding continued crimes against humanity committed by Israel. Despite this, Israel has not faced significant international sanctions.

Conversely, Israel has alleged that the Palestinian side committed crimes against humanity. Palestine initiated proceedings with the International Criminal Court (ICC) concerning these alleged crimes, partly because the dispute attracted international attention and to ensure accountability for Israeli actions. Although initial referrals faced obstacles under the Rome Statute (“Statute”), in 2018, Palestine submitted its latest referral following a request from the ICC Prosecutor. Subsequently, the Pre-Trial Chamber ruled on February 5, 2021, that the Court has jurisdiction over the territories mentioned in Palestine’s referral.

This paper first briefly illustrates the process between the ICC and Palestine before 2018. Following this, we will explain the decision dated 2021, specifically detailing its meaning and the expected subsequent legal processes.

B. The Referrals by the State of Palestine to the ICC

Palestine’s first referral to the ICC was made on January 22, 2009, by the Minister of Justice of the Palestinian Government. The minister lodged a declaration accepting the exercise of jurisdiction by the ICC for “acts committed on the territory of Palestine since 1 July 2002”. This declaration was filed under Article 12/31 of the Statute. Upon this referral, the Office of the Prosecutor (“Office”) initiated a preliminary examination, which should not be mistaken for an investigation. This stage merely determines whether the criteria required to initiate an investigation under the Statute have been met.

Regarding this initial referral—submitted before Palestine became a party to the Statute—the Office of the Prosecutor stated in its decision of rejection on April 3, 2012, that only a ‘State’ can confer jurisdiction due to Article 12, which stipulates that a State Party can accept the Court’s jurisdiction. The Prosecutor also noted that defining ‘State’ was outside the Office’s authority, suggesting this determination should be made by the United Nations (UN) or the Assembly of States Parties. Ultimately, the application was rejected because the applicant lacked the qualifications required, considering Palestine was not recognized as a ‘State’ by the UN.

The recognition of Palestine as a ‘State’ in the international community, particularly after 2012, is crucial for this article. It is generally accepted that membership in the UN implies recognition as a ‘State.’ The admission process is stipulated in Article 4/2 of the UN Charter: “The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”

Palestine could not become a full UN member due to the veto from the USA, which does not recognize Palestine as a ‘State’ under international law. Nevertheless, following a decision by the UN General Assembly with 138 affirmative votes, Palestine was accepted as a “non-member observer ‘state’”2. Subsequently, on December 9, 2014, Palestine was accepted as an ‘observer state’ by the Assembly of States Parties.

On December 31, 2014, Palestinian President Mahmud Abbas signed the Statute. On January 1, 2015, Palestine lodged a declaration under Article 12/3, thereby accepting the jurisdiction of the Court over alleged crimes “committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”. Then, on January 2, 2015, Palestine deposited its instrument of accession to the Statute. It entered into force for Palestine on April 1, 2015, in accordance with Article 126/2.

Following this declaration, the Office stated that it initiated a preliminary examination under Article 25/1-c of the Regulations of the Prosecutor. As mentioned before, this examination only determines if the criteria required to initiate an investigation exist.

Palestine referred the Situation in the State of Palestine (the “Situation”) to the Prosecutor—this being the final and main subject of this paper3. As a State Party, Palestine referred the Situation to the Office, covering “past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine” according to Article 13/1-a4 and Article 145. The Office first completed the preliminary examination, after which the Prosecutor requested a ruling on the Court’s territorial jurisdiction in Palestine pursuant to Article 19(3)6.

To briefly outline the preliminary examination process under Article 53, it is important to note that this phase occurs before an investigation begins. The examination involves a four-phase process:7:

In the first two phases, the Office assesses jurisdiction under Article 53/1-a8 of the Statute. Initially, all received information is assessed to “filter out information on crimes that are outside the jurisdiction9 of the Court and identify those that appear to fall within the jurisdiction of the Court.” In the second phase, it is “examined whether preconditions for the exercise of jurisdiction under article 12 are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court.” This assessment considers all information and documents submitted, which were retained from the first phase.

In the next phase, the admissibility of the referral is examined in terms of complementarity and gravity under Article 17 of the Statute. Finally, the last phase evaluates whether initiating an investigation according to Article 53/1-c would serve the interests of justice. The Prosecutor then decides whether or not to initiate an investigation after this four-step examination.

In this context, following the preliminary examination, the “Situation” is referred to the Pre-Trial Chamber (“Chamber”) by the Prosecutor. The content and evaluation of the Chamber’s decision will be covered in the next section.

C. Regarding the Decision of the Pre-Trial Chamber

The Prosecutor, having conducted a preliminary examination of Palestine’s application under Article 53/1 of the Statute, stated that there are reasonable grounds suggesting war crimes were or continue to be committed in the West Bank, East Jerusalem, and the Gaza Strip; that the situation meets admissibility criteria, and that an investigation would serve the interests of justice.

In addition to these issues, the Prosecutor also addressed the Court’s jurisdiction during the preliminary examination. At the request of the Prosecutor, a State party to the Statute under Article 125/3 accepted the Court’s jurisdiction under Article 12/1, stating that “The Court’s territorial jurisdiction extends to the Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza.”11 However, the Prosecutor requested that the Pre-Trial Chamber confirm its opinion on territorial jurisdiction under Article 19/3, arguing that the question of Palestine’s statehood under international law had not been definitively resolved.

The Chamber examined the Prosecutor’s request, considering observations from both Palestine and Israel. After finding the request compliant with procedural rules and examining its merits, the Chamber addressed two main issues: determining whether Palestine is “the State on the territory of which the conduct in question occurred…” listed in Article 12/2-a; and defining the Court’s territorial jurisdiction for the current Situation.

For the first issue, the Chamber stated that when evaluating whether an organization participating in the Statute is a state, it is not necessary to verify if it fulfills the condition of being a state under international law. It would be sufficient for the organization simply to be a party to the Statute to qualify as a ‘State’ within the scope of 12/2-a.

The decision submitted that Palestine is a state in line with Article 12/2-a. The justification provided was that Palestine participated in the Statute through appropriate procedures, and the Assembly of States Parties acted accordingly; Palestinian membership was not objected to under article 119/2. In essence, it was demonstrated that this issue was naturally resolved when Palestine became a party to the Statute, treating it like other states.

Subsequently, the Chamber examined territorial jurisdiction, which is linked to its finding on statehood. Emphasizing that border disputes would not prevent the Court from exercising its jurisdiction, the Chamber referred specifically to UN General Assembly resolution 67/19 when addressing this second issue. The Chamber reaffirmed the right of the Palestinian people to sovereignty over the occupied Palestinian territories since 1967, including East Jerusalem, and stated that territorial jurisdiction must be considered within the scope of the right to self-determination.

In interpreting the judgment on territorial jurisdiction, the right to self-determination—recognized by the international community as a human right—was taken into account. Ultimately, under Articles 13/a, 53/1, and 14 of the Statute; by exercising its right to self-determination, Palestine should be able to transfer its jurisdiction in these territories (Occupied territories, including East Jerusalem, Gaza, and the West Bank) to the Court and, consequently, the Court has territorial jurisdiction for this situation.

Thus, Israel’s responses, including claims12 that Palestine cannot transfer such jurisdiction because it is not a state with sovereignty over the lands in question and associated criminal jurisdiction, were rejected by the Chamber. Following this decision, on March 3, 2021, Prosecutor Fatou Bensouda announced that she opened an investigation, stating her commitment to “discharge the responsibility that the international community has entrusted to it, which is to promote accountability for Rome Statute crimes, regardless of the perpetrator, in an effort to deter such crimes.”13.

D. Conclusion

The Court determined that it has jurisdiction in Palestine, accepting it as a ‘State’ under Article 12/2-a and recognizing its right to self-determination because it is a State Party to the Statute. However, the Court emphasized that this decision was not intended to resolve any border disputes, including those under international law or unconnected with the scope of Palestinian territories.

With the Prosecutor’s statement that the investigation will be conducted independently, impartially, and objectively, and the Chamber’s decision, significant progress has been made. These findings pave the way for crimes committed in East Jerusalem, Gaza, and the West Bank since 2014 to be tried by the ICC. Examples of these alleged crimes include genocide during the Gaza war in 2014, crimes against humanity, war crimes, and crimes of assault related to settlement activities in Palestinian territories, as well as those allegedly committed during the Great March of Return protests in the Gaza Strip.

However, the commencement and continuation of trials against Israeli authorities for these or similar crimes depend on the UN Security Council’s decision not to use its authority14 to request the suspension or postponement of the investigation and/or case/trial for 12 months in order to protect international peace and security under Article 39 of the UN Charter.